014-SLLR-SLLR-2007-V-1-NEVILLE-FERNANDO-v.-CHANDRANI-FERNANDO.pdf
CA
Neville Fernando v Chandranl Fernando
159
NEVILLE FERNANDOv
CHANDRANI FERNANDO
COURT OF APPEALEKANAYAKE, J.
GOONARATNE, J.
CA 902/95
DC KALUTARA 2731/DJULY 9, 2007
Civil Procedure Code – Divorce – Ground of constructive malicious desertion-Requirements – Burden on whom? Is it a question of fact? Matrimonial relief onlyto the innocent spouse?
The plaintiff-appellant instituted divorce action seeking a divorce vinculomatrimonii dissolving the marriage between him and the defendant-respondenton the ground of constructive malicious desertion of the defendant.
The trial judge dismissed the action holding that, leaving of the matrimonial homeby the plaintiff was not due to any fault of the defendant and according to lawmatrimonial reliefs could be granted only to the innocent spouse.
Held:
In the case of constructive malicious desertion the spouse who is outof the matrimonial house must show that the other acted with fixedintention of putting an end to the marriage and the burden of provingjust cause in order to assert constructive malicious desertion is on thespouse who alleges constructive malicious desertion.
To constitute the offence of constructive malicious desertion by thedefendant the necessary conduct should be of grave and convincingcharacter.
It would be for the judge to say whether the facts were capable ofbeing regarded as equivalent to an expulsion from the matrimonialhome.
"the function of an appeal Court is to consider the matter without eitherdenying its first Court its special advantages or supposing that it canplace itself in the same position by a mere study of the record."
APPEAL from the judgment of the District Court of Kalutara.
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Cases referred to:-
Anulawathie v Gunapala and another- 1998 – 1 Sri LR 93.
Edwards v Edwards – 1949 – 21 ALL ER 145.
Alles v Alles – 51 NLR416.
Chellammah v Kanagapathy- 65 NLR 49 at 52.l5) Oberholzerv Oberholzer- 1921 -A.D. 272 at 274.
6) Alwis v Piyasena Fernando – 1993 – Sri LR 119.
Asoka Fernando with Ms. Manori Manik and M. Gamage for plaintiff-appellant.Rohana Deshapriya for defendant-respondent
September 21,2007CHANDRA EKANAYAKE, J.
The plaintiff-appellant (hereinafter sometimes referred to as the 01plaintiff has preferred this appeal from the judgment of the learnedDistrict judge of Kalutara dated 20.11.1995 pronounced in DistrictCourt, Kalutara Case No 2731/D seeking inter alia to set aside thesaid judgment and decree of the District Court and to enter judgmentand decree as prayed in the plaint.
The plaintiff had instituted the above styled divorce actionagainst the defendant-respondent (hereinafter sometimes referred toas the defendant) seeking inter alia a divorce vinculo matrimoniidissolving the marriage between the plaintiff and the defendant on the 10ground of constructive malicious desertion of the defendant. Thedefendant by her answer dated 20.10.1993 whilst admitting only themarriage and the birth of the 2 children namely – Himal NilrukshaHikkaduwa, Malshi Nilrukshi Hikkaduwa had prayed for a dismissal ofthe plaintiff's action. By way of further answer defendant hadcontended that the plaintiff was living with another lady and even achild was born to her as a result of the said undue intimacy anddenying the averment in paragraphs 7 of the plaint stated that in orabout February 1987 she was chased out of the matrimonial home bythe plaintiff after ill-treating her and harassing her.20
When the trial commenced having admitted the marriagebetween the plaintiff and the defendant and that the matrimonial homewas at No. 35, Siri Nawasa Mawatha, Kalutara-North, case had
CA Neville Fernando v Chandrani Fernando (Chandra Ekanayake, J.) 161
proceeded to trial on issues I to 6 and 9-10 raised on behalf of theplaintiff and the defendant respectively. Since the plaintiff had agreedto give custody of the above two children to the defendant (asappearing at page 26 of the brief), the learned trial judge had stated inthe judgment no necessity arises to answer the said issues 7 and 8.
Case of the plaintiff had been concluded with evidence and nooral evidence had been adduced for the defendant’s case.30
The learned Trial judge by the impugned judgment haddismissed the plaintiff’s action with costs. This is the judgment thisappeal has been preferred from.
Perusal of the evidence of the plaintiff reveals that the defendantwas in the habit of coupling names of the females and to quarrel withhim even prior to the marriage and the defendant continued to do soeven after the marriage. His position had been that as he had to leavethe matrimonial home he left. Further his evidence in examination-in-chief at page 39 of the brief had been to the following effect:
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The evidence to the above effect was not contradicted and hisevidence in cross examination (at page 50 of the brief) had been thatone lady by the name Priyangani had a child from him and said child’sbirth certificate was also produced through him marked as V3. He hadfurther testified that said child was born on 18.04.1993 and particularsto prepare V3 was furnished by him and the above position issupported by the particulars appearing in cage 9 of V3. According to soV3 father of child born to said Priyangani is Hikkaduwa NevilFernando – the plaintiff.
Having subjected the evidence of the plaintiff with regard to theconduct and behavior of the wife (the defendant) to a severe scrutinythe trial judge had concluded in the judgment that leaving thematrimonial home by the plaintiff was not due to any fault of thedefendant and according to our law matrimonial reliefs could begranted only to the innocent spouse.
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It is to be observed that the basis of the plaint and issues of theplaintiff had been on the constructive malicious desertion of thedefendant-wife In the case of constructive malicious desertion thespouse who is out of the matrimonial home must show that the otherhad acted with fixkd intention of putting an end to the marriage andthe burden of proving just cause in order to assert constructivemalicious desertion is on the spouse who alleges constructivemalicious desertion,- in this case the plaintiff husband. Therefore itbecomes essential to examine the actual facts of the case in order toascertain whether the party was obliged to leave the matrimonialhome as a direct consequence of the expulsive acts of the spousesaid to have been at fault. It was observed by Weerasuriya, J. in thecase of Anulawathie v Gunapala and another) as follows:
"It is to be observed that when a party seeks a divorce onthe ground of constructive malicious desertion what isrequired to be proved is that, the innocent party wasobliged to leave the matrimonial home as a directconsequence of the expulsive acts of the other party."
To constitute the offence of constructive malicious desertion bythe defendant (here the wife), the necessary conduct should be ofgrave and convincing character. In this regard it would be pertinent toconsider the decision in Edwards v Edwards<2>. Their Lordships at148:
"….but the necessary conduct must, from the very natureof the offence of desertion, obviously be of a grave andconvincing character. Whether in any given case thisrequirement is fulfilled is a question of fact on which a jurywould require to be carefully directed. It would be for thejudge to say whether the facts were capable of beingregarded as equivalent to an expulsion from thematrimonial home."
In the light of the above decision it is clear that in any givencircumstances whether requirements to constitute constructivemalicious desertion are fulfilled, is a question of fact.
The observations of Lord Radcliffe with regard to finding of factby a trial judge, In Alias v Ailed-3> would also be of importance. PerLord Radcliffe at 421.
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CA Neville Fernando v Chandrani Fernando (Chandra Ekanayake, J.) 163
"To reverse this finding on appeal would be a strong step.
Only justified if the trail judge had demonstrably misjudgedthe position."
Similarly Lord Radcliffe in delivering the Privy Council judgmentin Chellammah v V. KanagapathyW at 52 has succinctly stated thecircumstances in which a finding of fact of a trial court could beinterfered with. Per Load Radcliffe at 52.
"The function of an Appeal Court is therefore to consider thematter without either denying its first Court its specialadvantages or supposing that it can place itself in the sameposition by a mere study of the record. With these limitationsin mind it has to decide whether the judge’s findings of fact,since no question of law is in dispute, are so farunmaintainable upon the whole conspectus of the evidence,oral and documentary, that they cannot be supported.”
The following observation made in Oberholzerv OberholzeiW at274 would be important in the circumstances of this case.
"These matrimonial cases throw a great responsibilityupon a Judge of the first instance, with the exercise ofwhich we should be slow to interfere. He is able not onlyto estimate and credibility of the parties but to judge oftheir temperament and character. And we, who have nothad the advantage of seen and hearing them, must becareful not to interfere, unless we are certain, on firmgrounds, that he is wrong."
The above principle was followed by His Lordship the Chiefjustice G.P.S. de Silva, in the case of Alwis v Piyasena FemandcP). Itwas held amongst other things that:
"The Court of Appeal should not have disturbed the findingsof primary facts made by the District Judge on credibility ofwitnesses."
In this case the most vital issues of the plaintiff appear to beissues 1 and 2. Those are to the following effect:
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The learned trial judge had answered issue No. (1) in theaffirmative and (2) in the negative. Examination of the plaintiffsevidence demands the answer to issue No. (1) to be in the affirmative.
What needs consideration now is whether the learned judge wascorrect in answering issue No. (2) in the negative. Perusal of theimpugned judgment reveals that (as appearing at page 67 of the brief) noit had been concluded that under those circumstances it cannot besaid that there were strong reasons compelling the plaintiff to leavethe matrimonial home. The legal position too had been considered bythe learned judge. Judge’s finding on facts appear to be thataccording to the own testimony of the plaintiff he had been living ashusband and wife with another lady (from 1992) and thus amatrimonial offence by plaintiff was proved before the Court.Therefore he was not an innocent party. Further the learned judgeappears to have considered what really led the plaintiff to leave thematrimonial house in February 1987 (as averred in the plaint), isoWhether it was due to the fault of the defendant-wife. The finding withregard to the above appearing at page 68 of the brief is asfollows:
Of course according to paragraph 7 of the plaint the date ofleaving the matrimonial home by the plaintiff appears to be 14.2.87.
Issue No 01 also refers to the averments in paragraph 07 of the plaint.When concluding as above with regard to constructive malicious 160desertion it is seen that year 1986 is mentioned there. Howeverparagraph 07 of the plaint gives the date of leaving as 14.02.87.Therefore it is evident that due to some inadvertence, year 1986appears in the aforesaid finding.
On the evidence available I am unable to infer that plaintiff hadleft the matrimonial home in February 1987 due to directconsequence of any expulsive acts of the defendant. Further plaintiffsown evidence in cross examination had1 been that in or about 1987 the
CA
Perera v Caldera and others
165
defendant was living in Colombo as she had to follow a course inBorella and he left the matrimonial home in 1986 November orDecember. Plaintiff’s evidence to the above effect would suffice toanswer issue No. 02 in the negative since it appears that in February1987 the defendant had not even lived in the matrimonial home.
Having examined the evidence I am inclined to agree with thefindings of the learned trial judge and I conclude that issues had beencorrectly answered.
For the foregoing reasons I see no justificatio'n in interfering withthe findings. Accordingly this appeal is hereby dismissed. In allcircumstances of the case no order is made with regard to costs.
GOONERATNE, J. – I agree.
Appeal dismissed.
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